A blog devoted to appellate law and advocacy

November 14, 2008

National Union Fire v. West Lake Academy, Nos. 07-2190, 07-2204 (11/13/08). This is a fun insurance coverage case. It is pretty rare that case begins with the words “Fourth-party plaintiff Jane Doe (“Doe”)). Westlake Academy is one of those places that they put “out-of-control” or “moody “ teens “involuntarily.” As seems to be fairly common at these places, one of Westlake’s employees had sex with Doe. Doe became pregnant. And, as usual Doe sued the guy that made her pregnant, West Lake, and people she thought negligently let this happen. The state court action resulted in, among other things, a judgment jointly in the amount of $750,000 based on the negligent supervision claim. It held the employee (and another employee, probably the supervisor) jointly liable.

To begin, the First says that the defendants are not entitled to cross-appeal when they win.

The insurance company wasn’t too happy about this, and filed suit in the District Court for a declaratory judgment saying that the liability policy they wrote didn’t include “acts of molestation.” Though, there was a “sexual abuse endorsement” which they said limited liabile to $300,000. Moreover, they claimed that this was a “wasting” policy in that the coverage would be reduced by the cost to defend. The insured, as usual, answered and filed counterclaims asserting violations of state insurance and consumer protection laws. Then Doe got involved. She essentially was now on the same side as her molestors, and argued that she was standing in their shoes.

Doe says that she was exploited. Not molested. Not abused. The First and the District Court essentially disagree that the “abuse” and “molestation” coverage endorsement applies, because the exclusion for abuse and molestation and the endorsement for molestation have the same scope. Moreover, what went on wasn’t “exploitation” but rather “abuse.” Exploitation would mean turning Doe into a prostitute.

November 07, 2008

Wagner And Wagner Auto Sales v. Land Rover North America, Inc., 08-1456. As the name suggests this is a dispute between a car dealer and a manufacturer. Land Rover terminated the agreement. Applying Automobile Dealer's Day in Court Act, 15 U.S.C. § 1222 ("ADDCA"), and Mass. Gen. Laws ch. 93B, the Massachusetts "Dealer's Bill of Rights." the first says that the agreement was terminated for good cause (as required by the contract) when the dealer didn’t meet construction deadlines. There was some dispute as to whether the manufacturer had properly responded to the proposed plans. Further, there was no evidence of bad faith. Moreover, because this was a temporary dealership there wasn’t that much oppression going on, which is supposedly remedied by the act.

November 05, 2008

Commonwealth Land v. IDC Properties, No. 08-1130 affirms a grant of a declaratory judgment declaring some title insurance void because of “material misrepresentations.” At trial, there was no showing of fraudulent intent, but some showing of omission without specific questions being asked. Applying Rhode Island law, the First holds that “we need not decide how the Rhode Island courts would resolve a bare non-disclosure issue because it is clear that a half-truth or failure to speak when necessary to qualify misleading prior statements does amount to a misrepresentation.”

August 28, 2008

Fidelity & Guaranty v. Star Equipment Corp., No. 07-1999 (8/27/08). This is a contract dispute. The parties used the District Court’s ADR program, and a memorandum was produced. But, the parties backed away from it. The District Court decided that the memorandum was binding enough and enforced it without holding an evidentiary hearing. The First holds that “…the fact that the hand-written agreement contemplated execution of a more formal agreement does not preclude enforcement of the hand-written agreement.”

Finally, the First has some interesting discussion on indemnification where “good faith” is a condition. The First says that just because it is financially expedient to settle a claim doesn’t mean that there isn’t good faith, and otherwise. And, in the summary judgment context, the party resisting summary judgment would have had to show bad faith.

August 09, 2008

Kouvchinov v. Parametric Technological Corporation, No. 07-2395 (8/8/08). This is an ERISA retaliation claim. The plaintiff claimed that his employer retaliated against him for using his short-term disability benefits. The claim came the day before a layoff was to take effect. While he was receiving the benefit, he looked for, and found work at a company that was contracted with his first employer to do the same work he had been doing. Then his first employer found out and got all mad and stuff. He sued under ERISA and for tortious interference. The plaintiff claims that under 29 U.S.C. § 1140, specific intent to interfere with ERISA benefits need not be shown. Selya, of course, rejects this saying that would turn ever ERISA claim into a retaliation claim. And, looking at the facts, there appears to be no such intent. And, because there was no interference, the tortious interference claim fails, too., t

July 25, 2008

Weems v. Citigroup. No. 06-2565 (7/24/08). This is a pretty large MDL case, in which the plaintiffs claim that it is wrong for their employer to give them the option of receiving part of their salary as stock (at a discount rate), but requiring them to forfeit said stock if they “voluntarily” leave the company before they “vest” (usually after two or three years).

Despite the fact that most of the people involved in litigating this issue probably tell everyone they meet that they work in “securities” this comes down to a fairly straight-forward contract claim. Not really that glamorous. The First says that there was no breach of a contract.

Someone found a memo which says that the purpose of this thing is to punish people that go work for competitors, and therefore it is an unlawful restrictive covenant. (There are far, far, worse things companies do to their employees.) But the First says this is fine, because forfeiture occurs whether or not they work for a competitor. This doesn't really ring true, and it seems they are not taking this part of the argument too seriously.

Similarly, the First treats the rest of the common-law contract claims (under Florida law) with almost no degree of seriousness.

July 14, 2008

Reyelt v. Danzell, No. 07-2603. This is a lawsuit of what amounts to a contract for purchase of a property gone bad. The First has kind words for the District Court, but decides to write about what it views as “recurring” problems. These revolve around the use of timing provisions in contracts, as well as “best efforts” clauses. I can't say it is the most scholarly opinion (after all, it doesn't really bind Rhode Island courts), but I guess someone feels it was necessary for the First to talk about contracts.

Remember: If you understand the joke in the title of this post, you are a law geek and therefore have no business practicing law because of your lack of polish.

June 30, 2008

Rodi v. Southern New England Law School, No. 07-1770. The earlier opinion is here, and our coverage is here. A related case is here. Take it from me. Despite lawyer’s protestations about how the ABA’s accrediting regime is unfair or something, lawyers simply don’t like people that went to unaccredited law schools. It fact, it is considered rude to even mention their names in some circles. So, when a plaintiff sues an unaccredited law school claiming “ claimed fraud and a violation of a consumer protection statute” that was “provisionally accredited” you know where this is going. Of some interest is that the dean tried to convince this unfortunate student from transferring to a real law school. But, since real law schools have no time for people that associate with unaccredited law schools, he was denied admission. This time around, the only issues are whether his reliance was reasonable as a matter of law. His failed attempts to transfer to a real law school apparently show that he wasn’t really relying on what the deans were selling. Then he claims that but for the dean trying to convince him not to transfers he would have pursued a PhD. The First has no time for that. This guy was going to an unaccredited law school, and writes “if the deans' respective statements were not enough to convince Rodi to relinquish his pursuit of a transfer, it seems equally unlikely they would have been enough to persuade Rodi to shelve his pursuit of a Ph.D.” What they really mean is “Get serious. By associating with an unaccredited law school, he demonstrates that he is not PhD material.” Finally, the First points to the boilerplate language that the school used to say that it isn’t making representations, but “The school, through its disclaimer, essentially urged Rodi and other SNESL students to ignore statements such as the one made by Dean Larkin.” Moreover, since the ABA was really in charge of accrediting, there isn’t a way that it COULD have made such a representation.

Anyway, after all the snark, there is some important stuff in here about motions for recusal v. motions for reassignment. Essentially, unless the First says that a case should be reassigned, it isn’t an abuse of discretion not to reassign it.

McGill v. Minnesota Mutual, No. 07-2668 (unpublished). In this ERISA case, the plaintiff argues that the actual policy differed from the policy he applied for, and therefore they were guilty of fraud and misrepresentation, and a breach of a fiduciary duty. Applying Virginia law and basic contract principles, the Justice O’Conner write that applications for insurance are not insurance, and therefore, even though he claims he never saw the policy, he can’t argue that it was altered.